This story from the Boston Globe, which is headlined "Death penalty foes rip Coakley for signing brief," highlights that the politics of the death penalty in Massachusetts in quite different than in other parts of the country. Here is the start of the story:

Attorney General Martha Coakley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the US Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other attorneys general, signed a friend-of-the-court brief in September asking that the nation’s highest court maintain restrictions on intervention by federal courts. Death penalty opponents, who are watching the case closely, say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishments, handed down in state courts.

The case, which comes as Coakley is battling for votes in the Democratic Senate primary, involves a convicted murderer from Alabama who has appealed his case to the Supreme Court, on the grounds that his state-assigned lawyer failed to introduce crucial evidence that he is mentally retarded.

“There’s no way this kid should be killed," said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, an organization that opposes the death penalty. “It’s old-fashioned Southern states’ rights. I was shocked to see that she and the state of Massachusetts had joined that brief."

November 6, 2009

The Fourth Circuit today in US v. Grubbs, No. 07-5040 (4th Cir. Nov. 6, 2009) (available here), considers and rejects a number of procedural challenges to a federal sex offense sentence. Here is how the opinion begins:

Jimmie Vance Grubbs pled guilty to six counts of knowingly transporting someone under the age of eighteen in interstate commerce with intent to engage in a sexual activity, in violation of 18 U.S.C. § 2423(a), and six counts of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of eighteen, in violation of 18 U.S.C. § 2423(b). The district court sentenced Grubbs to 240 months of imprisonment and a life term of supervised release. On appeal, Grubbs does not contest his convictions, but contends the district court erred in imposing his sentence for three reasons: (1) the district court violated his Sixth Amendment rights by considering uncharged conduct when deciding an appropriate sentence; (2) the district court violated his Fifth Amendment rights by failing to require the Government to prove uncharged conduct by more than a preponderance of the evidence standard; and (3) the district court committed procedural errors in calculating his United States Sentencing Guidelines ("Guidelines") range. For the reasons that follow, we disagree with Grubbs and affirm the judgment of the district court.

November 5, 2009

This notable local sentencing story, which is headlined "Davie woman gets five-year sentence for fatal shooting: Woman gets 5 years for killing man who abused her," reports on a sentencing reduction a judge granted based on "battered spouse syndrome." Here are the details:

Physically, sexually and emotionally dominated by a hulking man who gave her drugs in exchange for sex, Lisa Marie Romero's breaking point came when he threatened her three children's safety.

Romero, 39, shot Frank Don Alvarez, 61, in the back of the head with a rifle and left him dead, face down in an industrial area north of Davie Boulevard near Interstate 95, on Nov. 17, 2006.

Finding that Romero suffered from battered spouse syndrome, Broward Circuit Judge Ilona Holmes on Thursday cast aside sentencing guidelines that called for a 10- to 30-year sentence and sent Romero to prison for five years.

Incensed by the light sentence, Alvarez's son, John, 44, stormed out of the courtroom. "Put it this way, I will get my justice when she gets out of prison," he said, pacing in the courthouse hallway. "She will find out."

He had not yet heard that the judge also gave Romero credit for the nearly three years she had spent in jail awaiting trial. Prison will be followed by 10 years of probation.

Influenced by opinions from two psychologists who found that Alvarez abused Romero, state prosecutor Al Ribas downgraded a charge of first-degree murder to manslaughter with a firearm. In September, Romero pleaded guilty to that charge.

Bernie Kerik enters plea deal providing him a different perspective on homeland secutiry

As detailed in this New York Times article, Bernard Kerik today pleaded guilty to eight charges including tax fraud and lying to White House officials. Kerik, who lead the NYPD through the 9/11 attack and was taped in 2004 to head the Department of Homeland Security, was able to secure a plea deal with a specific sentencing recommendation:

The prosecution and the defense recommended that the judge, Stephen C. Robinson, sentence Mr. Kerik, who faced up to 30 years in prison on the most serious charge, to 27 to 33 months. The judge, who is not bound by the recommendation, set sentencing for Feb. 18. Mr. Kerik was also ordered to pay restitution of nearly $188,000.

The tax fraud charges stemmed in part from Mr. Kerik’s acceptance of $250,000 in renovations to his Bronx apartment, provided by a company accused of having ties to organized crime. He also admitted lying to White House officials, denying improprieties, while he was being interviewed to be head of the Department of Homeland Security.

Playing the "blame game" for increased sentencing disparities after Booker

With the upcoming five-year anniversary of the Supreme Court's decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities. Here are some of my early thoughts:

1. As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker. With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.

2. Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases. Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.

3. Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines. As the US Sentencing Commission's own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.

4. Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases. Indeed, playing the "blame game," here is how I would roughly prioritize who merits the most "blame" for increased sentencing disparities after Booker:

A. Congress --- for failing to seek to reform or revise the entire system after Booker

B. US Sentencing Commission --- for failing to revise the most unsound guidelines

C. SCOTUS and the Circuits --- for failing to give reasonableness review any substantive content

D. Justice Department --- for failing to urge Congress or the USSC to do better

Of course, there is additional "blame" to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been "disparate" in their sentencing advocacy over the past five years. Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys' offices and probation offices, and differing procedures surely contributes to disparate outcomes.

But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker. These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day. If there is a broad concern that system-wide justice is not being well-served as we approach Booker's five-year anniversary, the blame should be principally placed on the system-wide actors who've mostly produced and perpetuated the post-Booker system-wide framework.

The title of this post is the key take-away from the abstract of this new criminology paper on SSRN from Donald Green and Daniel Winik. The paper is titled "Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism Among Drug Offenders," and here is the abstract:

Most prior studies of recidivism have used observational data to estimate the causal effect of imprisonment or probation on the probability that a convicted individual is re-arrested after release. Very few studies have taken advantage of the fact that in some jurisdictions, defendants are randomly assigned to judges who vary in sentencing tendencies. The present study investigates whether defendants who are randomly assigned to more punitive judges have different recidivism probabilities than defendants who are assigned to relatively lenient judges.

We track 1,003 defendants charged with drug-related offenses (and no non-drug-related offenses) who were randomly assigned to nine judicial calendars between June 1, 2002 and May 9, 2003. Judges on these calendars meted out sentences that varied substantially in terms of prison and probation time. We tracked defendants using court records over a four-year period following the disposition of their cases in order to determine whether they were subsequently re-arrested. Our results indicate that randomly-assigned variations in prison and probation time have no detectable effect on rates of re-arrest. The findings suggest that, at least among those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior.

Noting significant biases in pot policies and practices

CNN has this notable new commentary headlined "Pot acceptable? Not for young and nonwhite," which is authored by Stephen Gutwillig of the Drug Policy Alliance. Here are extended excerpts from an important piece:

This year is a watershed year in pot politics. The Obama administration recently announced it would defer to state medical marijuana laws and stop federal prosecutions of patients and providers who comply with them. In California, the tanking economy inspired Gov. Arnold Schwarzenegger to call for debating marijuana taxation and regulation, a bill was introduced in Sacramento to do just that, and four separate ballot initiatives are circulating to allow voters the chance to decide the issue for themselves.

Schwarzenegger's position was echoed by New York Gov. David Paterson and by Arizona Attorney General Terry Goddard, who suggested legalizing pot could cripple Mexican and U.S. gangs. The unprecedented momentum to question marijuana prohibition is being fueled by a widely remarked-upon phenomenon — the cultural mainstreaming of marijuana.

From Showtime's established hit "Weeds" to the "Is Pot Already Legal?" cover of Fortune magazine in September, marijuana is commanding attention and an odd kind of respect for its sheer popularity and massive revenues. Marie Claire magazine and the "Today Show" profiled "stiletto stoners," stressed-out women professionals who unwind with a doobie instead of a cosmo. And in a recent style feature, the Los Angeles Times gushed that "cannabis culture is coming out of the closet," citing its ubiquity across the spectrum of pop culture and high-end design....

Pot is indeed flourishing in the mainstream as never before, but the sometimes giddy discussion overlooks a sinister parallel phenomenon: More people are being arrested for pot crimes than ever; they are increasingly young and disproportionately nonwhite.

In 2008, the police arrested 847,864 people nationwide for marijuana violations, according to the 2008 FBI Uniform Crime Report. Pot arrests represent fully half of all drug arrests reported in the United States. The overwhelming majority — a whopping 89 percent — were charged with possession only. Most striking, the marijuana arrest rate in the United States has nearly tripled since 1991.

More people are being arrested for pot crimes than ever; they are ... young and disproportionately nonwhite. Examples from both coasts illustrate this. In California, according to the Center on Juvenile and Criminal Justice, crime arrest rates have generally plummeted statewide from 1990 to 2008 by an average of 40 percent. Drug possession arrests for everything but marijuana collectively fell by nearly 30 percent. But during that same 18-year period, arrests for marijuana possession in California skyrocketed 127 percent. In 2008, more Californians were arrested for pot offenses than any year since decriminalization took effect 34 years ago.

Similarly, New York state decriminalized simple marijuana possession in the 1970s. But under Mayors Rudolph Giuliani and Michael Bloomberg, New York City has become one of the marijuana arrest capitals of the world — 40,300 arrests last year. In the years between 1997 and 2008, the NYPD made 12 times as many pot possession arrests as in the previous 12 years, according to a study by the New York Civil Liberties Union.

How can the notion that marijuana is "here to stay" coexist with these rates of marijuana arrests? Apparently because the people caught in the crossfire aren't considered part of the mainstream. In California, African-Americans are three times as likely as whites to be arrested for a pot crime... In New York City, blacks and Latinos — who represent about half the city's population — accounted for 86 percent of everyone charged with pot possession in 2008....

Widespread discussion of everyday marijuana consumption is helping turn the tide against decades of failed marijuana prohibition. However, too much of that conversation is ignoring the people most impacted by our punitive policies. We must end pot prohibition and stop the massive number of arrests and biased enforcement that are at its core.

"10 Bodies in Sex Offender's Home: Is System Broken?"

The title of this post is the headline of this new ABC News piece which seeks to reflect on what the horrific Anthony Sowell case might tell us about modern sex offender regulation efforts. Here are snippets from the piece:

As the count of bodies found at the Cleveland, Ohio, home of a registered sex offender, more and more people are wondering how they could have gotten there without anyone knowing?

Now that Anthony Sowell has been arrested and charged with multiple counts of murder, the question is, why weren't the police and parole officers who were keeping tabs on him aware of what was going on?

Sowell, 50, today was ordered held without bail on five counts of aggravated murder, while police investigators confirmed they had found 10 bodies in and around his home, and a skull in his basement.
"In 28 years of being on this bench, this is without question the most serious set of allegations that I have ever faced," Judge Ronald B. Adrine said during Sowell's court appearance today....

If it turns out that Sowell is responsible for the deaths of the people whose bodies have been found at his home, it could because he was able to exploit a broken parole and sex offender registry system.
Sowell was a registered sex offender, but authorities failed to enlist the community's help to be on the lookout for signs of trouble....

Experts say sex offender lists are not only long, but fail to distinguish between minor offenders and the most dangerous predators. "The system that we have to do monitoring and supervision follow-up once they return to the community is just overwhelmed," said Ernie Allen of the Center for Missing and Exploited Children.

As Booker approaches five, the individual/equal justice debate continues on

Remarkably, in just a couple of months, we can mark the five-year anniversary of the Supreme Court's decision in Booker to transform the federal sentencing guidelines from legal mandates to advisory rules. The the debates over federal sentencing rules and results have taken many forms over these last five years, this new article from the Wall Street Journal spotlights that the most enduring issue remains whether Booker strikes a sound balance between the competing goals of individual justice and equal justice.

The new WSJ piece is headlined "Looser Rules on Sentencing Stir Concerns About Equity," and it gives particular attention to potentially disparate white-collar sentencing outcomes after Booker. Here are excerpts:

[L]andmark Supreme Court cases in 2005 and 2007 ... gave federal judges more freedom to depart from sentencing guidelines. But this relatively new latitude has caused a thorny problem to creep back into the federal system: Defendants can receive wildly different sentences for similar crimes.

"There is preliminary evidence of greater inconsistencies between judges, who have the freedom to draw upon their own political, policy and punishment values when they make sentencing decisions," says Ryan Scott, a law professor at Indiana University who has studied sentencing behavior by federal judges....

Proponents of greater sentencing discretion say past rules were too inflexible, preventing judges from using their expertise to fit the punishment to the crime.
But others warn that the new freedom risks a return to the problem that prompted Congress to call for uniform sentencing guidelines in the late 1980s: that defendants' fates will be subject largely to the whims of individual judges.

Since sentencing parameters were relaxed, early indications suggest that judges on balance are using their discretion to give longer white-collar sentences. Average prison sentences for fraud increased to about two years in the nine months ended in June 2009. That is six months longer than fraud sentences for the same period five years earlier, according to data from the U.S. Sentencing Commission, a federal agency.

But in some cases, judges have handed down much lower sentences than would have been required by law just a few years ago....
The new level of unpredictability has drawn the ire of some prosecutors and defense attorneys worried about inequitable sentencing.

For white-collar cases in particular, "we're back to a pre-guidelines era," says Frank Bowman, a law professor at the University of Missouri who helped shape federal sentencing guidelines in the mid-1990s. "You see the most disparity and the most potential for disparity, and I think that's a bad thing."

Alan Vinegrad, a former U.S. attorney in Brooklyn who is now a defense lawyer, counters that being able to customize sentences can increase fairness in the judicial process, even though there is more uncertainty in the courtroom. "To me," he says, "that risk is tolerable."

Concern that the relaxed guidelines are creating unfair disparities appears to be growing. In June, U.S. Attorney General Eric Holder said in a speech that it was important to assess whether recent sentencing practices "show an increase in unwarranted sentencing disparities" based on "differences in judicial philosophy among judges working in the same courthouse."

As detailed in this local article, which is headlined "Lawyers fight law on sex offenders before Ohio Supreme Court," the latest legal battle over the latest sex offender laws is taking place in my own backyard. Here are the basics:

Thousands of registered sex offenders would be subject to less-stringent reporting requirements if defense lawyers succeed in challenging parts of a 2007 state law intended to crack down on sexual criminals.

The attorneys told the Ohio Supreme Court today that the get-tough law was applied illegally to more than 26,000 sex offenders who were sentenced before it took effect.
In addition, the lawyers said, the measure penalizes people who commit sex offenses before they turn 18 by requiring them to continue to register as sex offenders well into adulthood.

The state's highest court heard four cases today challenging Senate Bill 10, which created a new system for classifying sex offenders based more on the severity of the crime than the likelihood of committing future offenses.
More than half of the offenders were placed in the most-serious category — sexual predators — who are required to register every 90 days for life.

Jeffrey M. Gamso, a Toledo lawyer who argued one of the cases, said the law had more to do with securing federal funding under the Adam Walsh Act than protecting Ohioans....

State Sen. Timothy J. Grendell, R-Chesterland, said the law makes it easier for the public to monitor the whereabouts of registered sex offenders on the Internet and through mandatory notices to neighbors.
"The policy decision, from my perspective, was based on protecting public safety," Grendell said. "The timing was based on us being told we'd get an additional 10 percent (in Adam Walsh funding) if we did this by a certain time. We would not make public policy just to get money."

November 4, 2009

"Ohio GOP lawmakers: Execution process can be fixed"

The title of this post is the headline of this notable new AP piece discussing Ohio's on-going efforts to try to fix its execution protocol. Here are excerpts from the piece:

Two Republican lawmakers advising Ohio's Democratic governor on changes to the state's lethal injection process say it shouldn't be hard to fix the system. The lawmakers, both proponents of capital punishment, are among state legislators helping Gov. Ted Strickland find medical personnel willing to help the state improve its injection process. Both say they got involved to make sure recent problems with lethal injection don't lead to attempts to eliminate the death penalty.

"We want to make sure our well-established judicial rights to administer capital punishment in appropriate cases are preserved and will not be defeated by new and ingenious means of dodging the executioner," Sen. Bill Seitz, of Cincinnati, said Wednesday. Seitz said he's talked to lawyers and doctors but has yet to find anyone willing to come forward. But his conversations have suggested changes Ohio could adopt, ranging from using a retired doctor during executions to requiring that inmates drink enough liquids before an execution to keep their veins healthy.

Sen. Tim Grendell has contacted current and retired doctors looking for advice. "I find it difficult to believe there isn't a functional solution to this problem," said Grendell, of Chesterland.

The death penalty is temporarily on hold in Ohio while the state develops the new policies. The update follows a botched execution on Sept. 15 that was halted when executioners couldn't find a suitable vein on inmate Romell Broom....

Also Wednesday, the Ohio Supreme Court set two new execution dates. The court set a May 13 execution date for Michael Beuke, 47, convicted of the 1983 murder of Robert Craig, a man he met while hitchhiking on Interstate 275 in southwest Ohio. The court also set a June 10 execution date for Richard Nields, 59, sentenced to die for the 1997 death of his girlfriend, 59-year-old Patricia Newsome, at their home in Finneytown in southwest Ohio.

Given that Ohio does not seems to be making much progress on a new execution protocol, and given that litigation seems inevitable whenever a new protocol is adopted, I would not bet on these new execution dates holding. But if there is a persistent will, I suspect Ohio will eventually find a way to get back in the business of executions.

As noted in this prior post, the Supreme Court today heard arguments in Pottawattamie County v. McGhee, which concerns potential liability of prosecutors for arranging false testimony, and in Wood v. Allen, which concerns the scope of federal court review of facts in state criminal proceeding. Now, via SCOTUSblog, the "oral argument transcripts for Pottawattamie County v. McGheeand Wood v. Allen are here and here."

With a faculty meeting and then a baseball game in my near future, I may not get a chance to comment on either of these arguments anytime soon. But that should not stop others from noting anything especially noteworthy via the comments.

"All Locked Up: Did Joe Sullivan, sentenced to life at 13, have a fair trial?"

The title of this post is the headline of this new piece at Slate. Here is how the piece gets started:

Next week the Supreme Court will hear arguments, in Sullivan v. Florida, about whether sentencing a 13-year-old boy to prison without the possibility of parole violates the cruel-and–unusual-punishment clause of the Constitution. Joe Harris Sullivan is one of two teenagers that young currently doing life without parole for a nonhomicide offense in the United States. His lawyers are hoping that the court will extend its 2005 bar on executing criminals who committed crimes as juveniles to Sullivan's sentence.

Whatever the court decides, its ruling will be based on the premise that Sullivan received a fair trial. The adequacy of that proceeding isn't before the justices now. But a brief review of the trial record reveals a process so pathetic that it raises questions about whether Sullivan committed the crime in the first place. It also seems that the trial judge may not have intended to sentence Sullivan to life without parole. In the end, that judge, along with the prosecutor and defense lawyer, failed Sullivan so deeply that we have to wonder whether his sentence reflects a deep and basic failure of ordinary criminal justice.

Public shaming instead of incarceration in Pennsylvania theft case

A helpful reader forwarded to me this story from Pennsylvania, headlined "Women Hold Signs Admitting Theft." Long-time readers may recall that I tend to be a supporter of shaming sanctions, especially when they serve as a substitute for incarceration. As the press report explains, that's exactly what has happened in this notable state case:

In exchange for no jail time, a woman and her adult daughter have agreed to stand outside a Pennsylvania courthouse holding signs saying they stole a gift card from a 9-year-old girl on her birthday.

Fifty-six-year-old Evelyn Border and 35-year-old Tina Griekspoor stood outside the court for 4 1/2 hours Tuesday. They held signs that read: "I stole from a 9-year-old girl on her birthday! Don't steal or this could happen to you!"

Because the women agreed to hold the signs, Bedford County District Attorney Bill Higgins says he'll ask for probation instead of jail when they plead guilty to the theft. Higgins says they swiped a gift card that the girl set on a shelf while a Walmart employee helped her.

The girl's mother planned to drive by the courthouse to teach her daughter the importance of obeying the law.

Is there a "middle ground" on California's sex offender residency restrictions?

The question in the title of this post is prompted by this press report on yesterday's argument before the California Supreme Court concerning the state's sex offender residency resrictions. Here are the details:

The California Supreme Court appeared to be searching for a middle ground Tuesday in a dispute over whether thousands of formerly imprisoned sex offenders must live at least 2,000 feet from parks and schools, a voter-approved restriction that would exclude them from most of the state's urban areas.

A state lawyer argued that Proposition 83, a November 2006 initiative, imposed the residency restriction on all 65,000 registered sex offenders in California and subjected them to prosecution for violations.

An attorney for four paroled offenders, two from the Bay Area, said the restrictions covered, at most, only those who committed sex crimes after Prop. 83 passed — and made little sense even for that group. "It is not rationally related to the harm the voters were trying to prevent," attorney Ernest Galvan told the court. The law limits only where ex-convicts can live, and doesn't prohibit them from entering parks or school grounds where children would be found, he noted.

Kenneth Mennemeier, lawyer for the state Department of Corrections and Rehabilitation, countered that Prop. 83 reflected voters' "desire to protect children from the threat of recidivism that sex offenders pose." He said it should be interpreted broadly to apply to anyone who has ever been convicted of a sex crime requiring registration. Those crimes range from indecent exposure to forcible rape.

Justice Marvin Baxter said both sides were "arguing extremes." The court spent most of the one-hour hearing debating how the initiative affects offenders who were on parole when Prop. 83 passed, those who were paroled afterward, and those who have completed parole supervision but are still subject to the lifetime registration requirement.

The state says about 6,800 registered sex offenders are now on parole. Nine months after Prop. 83 passed, parole officers began ordering them to leave their homes if they lived less than 2,000 feet from a park or school, and arresting them for parole violations if they stayed. Under those rules, "San Francisco is one big exclusion zone," Galvan said. Because authorities have refused to let parolees move to other counties, he said, their only choices are homelessness or prison.

Baxter noted, however, that Galvan's four clients had all been paroled before Prop. 83 passed, and would not be subject to the residency restrictions if the court interpreted the measure to cover only post-November 2006 parolees. That was the most logical interpretation of the measure, said Baxter, generally the court's most conservative justice.

A Canadian perspective of appellate sentencing review

I just saw via SSRN this notable article about appellate sentencing review, which is titled "Wrestling with Punishment: The Role of the BC Court of Appeal in the Law of Sentencing." Here is the abstract:

This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921. In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system of criminal justice. We explore the important role that the BCCA has played in articulating a vision of what constitutes a just social response to criminal wrongdoing.

The court’s work in this area has been rich, its views on sentencing as mercurial as the practices of punishment. At times the court has served quite directly as an institutional voice for dominant social views of punishment, whether they were of a more sternly retributive form or reflected an era of hope in rehabilitation. Yet, in more recent years, the jurisprudence of the court has also included strong voices reflecting a critical posture towards traditional assumptions in our theories and practices of sentencing. In the current political climate that finds a retributive ethos in the criminal law in ascendancy, this jurisprudence reminds us of the value of this posture — one that asks us to think more deeply, critically, and cautiously about the assumptions that tacitly guide our system of criminal justice.

DC Sniper makes (final?) appeal to SCOTUS before scheduled execution

As detailed in this Washington Post article and this SCOTUSblog post, lawyers for "sniper John Allen Muhammad, mastermind of the terrifying 2002 Washington area shooting spree, asked the U.S. Supreme Court on Tuesday to halt their client's execution, saying he was paranoid and delusional during his trial." Here is how SCOTUSblog describes the legal particulars:

The new petition asked the Supreme Court to review two issues. Paraphrased, they are: whether the Fourth Circuit was wrong in the standard it used to analyze the performance of his lawyers on the incompetency issue, and whether Congress has set a one-year filing period for the first habeas plea and thus that period cannot be shortened by federal judges.

The first question is a mixture of an inquiry into counsel’s performance, and a question of the scope of prejudice that may result from a flawed performance regarding competency. Muhammad’s petition contends that, in judging whether Muhammad’s case was harmed when his lawyers failed to bring forth evidence of his incompetence, when the judge was considering whether to let Muhammad act as his own lawyer, the test is whether there was a reasonable chance the accused would have been found incompetent to waive his rights. The Fourth Circuit, it adds, erred in focusing only on whether there was a reasonable prospect that the trial would have ended differently if Muhammad had not been his own lawyer (for two days of the trial)....

The second issue focuses on what the petition says is a truly novel practice, under which federal District Courts in Virginia routinely deny first-time habeas applicants a full year to prepare their habeas pleas. Thus, the question raised is whether the one-year time provision in federal habeas law (enacted as part of the Antiterrorism and Effective Death Penalty Act) bars a federal judge from ordering an earlier filing. Federal judges ordered Muhammad to proceed with plenty of time left in the one-year span, the petition says.

My gut instinct is that it is unlikely that the Justices will take up this high-profile capital case. But, especially in death penalty settings, unexpected factors can sometimes lead to unexpected results.

November 3, 2009

It is officially time for Second Amendment fans to start supporting NBA's Delonte West

This local article from Maryland, which is headlined "Cavs Delonte West Faces Weapons Charges," reports that a prominent NBA player is now officially facing state criminal charges for posessing guns in self defense. Here are the basic legal details:

Prince George’s County Grand Jury has returned an eight count indictment against Cleveland Cavaliers Guard Delonte West. West is charged with transporting concealed weapons.

Police say the former Eleanor Roosevelt High School basketball star was found with two loaded pistols and a shot gun after being pulled over on the Beltway September 17th. Police say the Cavaliers guard was riding a three wheeled motorcycle when he cut an officer off on the outer loop near Central Avenue. On the side of the road police say West admitted he was armed....

"These charges carry up to three years in jail for each offense,” said State’s Attorney Glenn Ivey. “So potentially he could be looking at some jail time here... I don't know that the sentencing guidelines are going to require that but we'll have to see how that plays out over time."

Ivey says West has not yet hired an attorney to represent him. The State’s Attorney says he expects an early January trail date will be set. West has not commented on his arrest but his father did, telling reporters in September his son was protecting himself from “a lot of not too nice people out there.”

Delonte West has said he suffers from Bipolar disorder. He left training camp last year to get treatment for depression. West, who could still face a league suspension over the charges in Maryland, made his season debut during Saturday night's 90-79 win against Charlotte, scoring 13 points in 24 minutes.

This Washington Post account of the indictment provides more of the legal particulars and also spotlights why West need to be seriously concerned about facing prison time:

In addition to the weapons offenses — each of which is a misdemeanor carrying a maximum penalty of three years in prison — the grand jury also indicted West, 26, on one count each of reckless driving and negligent driving.

Prince George's prosecutors routinely seek jail time for people convicted of weapons charges, even first-time offenders. State's Attorney Glenn F. Ivey said West's case will be handled no differently than any other.

I trust that West has the resources to hire a first-rate criminal defense attorney. I sincerely hope that his attorney(s) will have the insight and courage to realize that the Supreme Court's ruling and reasoning in Heller provide a plausible Second Amendment claim for West if he truly was keeping and bearing arms for personal self defense when pulled over by the police.

Some related posts on Delonte West's situation and other celebrity gun possession cases:

Where sports, tragedy and the origins of bad federal sentencing law converge

I received via e-mail this reminder from the folks at FAMM to set my DVR to ESPN tonight in order to record a documentary on a sports story and personal tragedy that would become the back-story to the origins of bad federal sentencing law on cocaine and crack penalties:

FAMM's president Julie Stewart is featured in the film "Without Bias," which tells the now-legendary story of University of Maryland college basketball star Len Bias. In 1986, Bias was drafted by the Boston Celtics. Later that night, he died from a cocaine overdose while celebrating his success. His untimely death rocked the nation and led to the creation of the mandatory minimum drug sentences that are still on the books today. To learn more and see a preview of the film, visit ESPN's website here.

The sentencing details of how Bias's death impact federal sentencing legislation is captures in part in Chapter 6 of the US Sentencing Commission's 1995 report to Congress on cocaine policy:

A few weeks after Bias's death, on July 15, 1986, the United States Senate's Permanent Subcommittee on Investigations held a hearing on crack cocaine. During the debate, Len Bias's case was cited 11 times in connection with crack. Eric Sterling, who for eight years served as counsel to the House Judiciary Committee and played a significant staff role in the development of many provisions of the Drug Abuse Act of 1986, testified before the United States Sentencing Commission in 1993 that the "crack cocaine overdose death of NCAA basketball star Len Bias" was instrumental in the development of the federal crack cocaine laws. During July 1986 alone, there were 74 evening news segments about crack cocaine, many fueled by the belief that Bias died of a crack overdose.

Not until a year later, during the trial of Brian Tribble who was accused of supplying Bias with the cocaine, did Terry Long, a University of Maryland basketball player who participated in the cocaine party that led to Bias's death, testify that he, Bias, Tribble, and another player snorted powder cocaine over a four-hour period. Tribble's testimony received limited coverage.

Fascinating newspaper report on the impact of Ring in Idaho

This local article from Idaho suggests that the Supreme Court's 2002 Ring decision concerning jury trial rights in capital cases has had a profound impact on the operation of the death penalty in The Gem State. The article is headlined "Idaho prosecutors opting not to seek death penalty: Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005," and here are excerpts:

[I]n death penalty cases in Idaho since 2003, the jury is the ultimate arbiter. And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life. Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho — double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994. And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences. Not one of Idaho's 42 other counties has taken a death penalty case to trial. Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others — including one in a child-death case....

Recent experience has shown Ada County prosecutors how difficult it is to persuade jurors to hand out a death sentence. In 2004, juries called for the execution of convicted killers Azad Abdullah and Erick Hall, but in 2005 spared the lives of Jason McDermott and Ignacio Sanchez even after finding both guilty of first-degree murder.

In McDermott's case, one juror out of 12 could not get past defense evidence that showed McDermott had a brain injury from being shot in the head, mitigating his execution-style slaying of 18-year-old Zachariah Street in May 2003. After Sanchez was found guilty of beating his girlfriend's 2-year-old daughter to death over a period of weeks in 2003, defense attorneys showed he had been physically abused as a child, had battled with depression and other mental illnesses, and had used methamphetamine since he was 12....

Such uncertainty has helped lead to settlements in a number of death penalty cases in Idaho since the 2003 law change. Former Canyon County Prosecutor Dave Young dropped pursuit of the death penalty against Alofa Time in 2007 in exchange for a guilty plea to first-degree murder. Time is now serving life in prison, without the possibility of parole, for killing and beheading his ex-wife, Theresa, in 2006. Young said he made the deal "to spare the family from a lengthy trial and being forced to relive this horrific crime."...

In 2006, Jim Junior Nice avoided the death penalty after cutting a deal with Twin Falls County Prosecutor Grant Loebs to plead guilty to murdering his three young children in Twin Falls the year before. Prosecutors say Nice used rat poison and over-the-counter medication to kill 6-year-old twins Justin and Spencer and their 2-year-old sister, Raquel.

Loebs said he made the deal in the Nice case for a variety of reasons - including the fact that Nice's guilty plea means he will never leave prison. But he did say Nice's attorneys would have put on mitigation evidence that their client suffered from mental illness. Figuring out whether or not to seek the death penalty "is a tough, tough calculation to make," said Loebs. "It's one of the toughest things you have to do as a prosecutor."

Are there any crime and justice issues or stories to follow this election day?

I am about to head out to vote this morning, and here in Ohio we have three state-wide ballot issues that concern only non-criminal law matters (unless one considers an initiative to authorize casinos in four Ohio cities a criminal law matter). I head out wondering if there are any notable crime and justice issues or stories worth following closely this odd-year election day.

I see from this helpful website that Mainers are today voting on a medical marijuana issue and that New Yorkers have a prisoner re-entry issue to consider. Also, the New Jersey gubernatorial race arguably has a criminal justice angle due to the fact that the Republican candidate, Chris Christie, used to be the state's US Attorney. But I do not sense that any aspects of today's voting patterns will provide any sense of the national mood on any major criminal justice issues.

I have noticed that some "classic" tough-on-crime rhetoric has been showing up a bit more on the campaign trail lately. Still, I suspect in 2010 and probably also in 2012, as was the case in 2006 and 2008, that crime and justice issues will be taking a back seat to other local and national concerns.

"Death penalty cases costly; instead, seek life sentences"

The title of this post is the headline of this commentary coming from The Spokesman Review in reaction to an intriguing debate over a potential capital case in Washington. Here is how the piece starts:

Stevens County is balking at accepting the death penalty case of Christopher H. Devlin, because of the enormous costs associated with mounting such cases. It’s a valid concern, because the county is already facing a $1.2 million deficit.

“I have no doubt that the defense cost of Mr. Devlin and the costs to prosecute this case would be a serious blow to the solvency of Stevens County,” county prosecuting attorney Tim Rasmussen told The Spokesman-Review. He noted that a similar case cost Okanogan County $750,000.

While cost shouldn’t be the only concern in prosecutions, it’s become clear that a death penalty charge imposes a financial burden that isn’t worth it. That’s also true of larger counties, especially as they try to dig themselves out of deep budgetary holes. It can mean more pressure to reach plea agreements in other cases or employee layoffs or cutbacks in service.

The Devlin case was investigated by the Spokane County Sheriff’s Office and the death penalty charge was brought by Spokane County, because the body of Daniel D. Heily was found near Deer Park. But investigators have since heard from a co-defendant who says the killing took place in Stevens County.

Spokane County Superior Court Judge Jerome Leveque ruled last month that because the crimes took place in two counties, the defendant could decide where to mount a defense. Devlin chose Stevens County.

Rasmussen contends that the judge wants Spokane County to prosecute the case with a Stevens County jury. He says Spokane County should pick up the tab. Spokane County Deputy Prosecutor Dale Nagy says his interpretation is that the entire case — costs included — shifts to Stevens County.

This financial hot potato shows why it is a wiser course to seek life sentences, with no possibility of parole, for defendants like Devlin.

This column in the Baltimore Sun, which is headlined "Not just 'liberals' to blame for drunk-driving tragedies," echoes the complains I have long had about our collective failure to be more effective in sentencing drunk drivers. Here are snippets:

Liberal, conservative, moderate — judge, lawyer, defendant or next of kin, or state legislator — it doesn't matter. When it comes to drunken driving in Maryland, and most of this country, we are almost all enablers.

Here's a number to consider: 25,120. That's the number of Marylanders who had three or more convictions for driving while intoxicated as of April 2008. Mothers Against Drunk Driving came up with that figure, based on statistics from 20 states and the District of Columbia compiled last year by the National Highway Traffic Safety Administration.... Assuming most of them still drive — and that's a fairly safe assumption in this state, and one that MADD makes — that's a huge number of potential dangerous encounters for any of the rest of us who drive....

From what I've seen over the years — following drunk-driving and auto manslaughter cases in my own newspaper, and actually sitting in city and suburban courtrooms as defendants appear before judges — coddling of drunken drivers cuts across society. It has not been liberalism at work in the making of laws and the setting of sentencing guidelines. If anything, a libertarian philosophy has defied efforts to restrict those who drink and drive, from hard-core punishment (heavy fines and long jail sentences) to outright prohibitions on future driving....

We don't take the zero-tolerance approach. You can get caught drinking while driving in Maryland and still drive a motor vehicle — if not immediately during a license suspension, then certainly in the near future. Driving a motor vehicle is a privilege, but many view it as a right, or a right with a few inconvenient conditions once in a while.

Even the measure that many agree would be effective — requiring use of an ignition interlock device, a dashboard Breathalyzer that keeps a car from starting if the driver isn't sober — presumes that someone established as a danger will be allowed to drive again. That's the reality, and I accept it. We don't have one-time loser laws for drunken drivers and probably never will.

So requiring the device would seem to make sense. Eleven states made interlocks mandatory. Virginia, supposedly far more conservative than Maryland, mandated the devices for people who have had two convictions.... In Annapolis last winter, a similar requirement passed a Senate convinced of its potential effectiveness. But the measure never got out of a House of Delegates committee chaired by Joe Vallario, who in his other life is (can you guess?) a defense attorney.

"Man Charged With Filming Sex With 14-Year-Old Says He Is 'Going To Jail For Love'"

A 23-year-old Winchester man was sentenced in Chattanooga Federal Court on Monday to serve four years and four months in federal prison for filming sexual encounters with a 14-year-old girl. Mary Ellen Coleman, attorney for Brad A. Davis, said he "cared" for the girl and had no intention of distributing the videos of her.

Davis, after being sentenced by Judge Sandy Mattice, said, "I guess I'm going to jail for being in love." Davis had been charged after a Winchester attorney turned a tape over to the Winchester Police Department. The attorney said he got it from a member of the victim's family.

Authorities said Davis made a video of the girl having consensual sex with him and also used his cell phone to film her performing a sexual act on him. He also used a Nikon camera to take 22 photos of her nude in provacative positions....

The sentencing range for Davis was 46-57 months. Attorney Coleman asked for a lighter sentence, noting that former Baylor teacher/coach got diversion after having sexual encounters with a 16-year-old girl. Prosecutor John MacCoon said that was in state court, and he said federal judges are not to take state sentencing into account but to focus on uniformity in the federal system....

Prosecutor MacCoon said the Davis situation became a federal case rather than a statutory rape charge in state court because he took the videos and pictures. He pleaded guilty to possession of child pornography.

Effective coverage of the SCOTUS Seale dodge

The New York Times has this effective piece, headlined "Court Declines Case of Klansmen in ’64 Slayings," and The BLT has this effective entry, headlined "Supreme Court Rejects 5th Circuit Plea in Kidnap Case," discussing the notable (lack of) action from the Supreme Court in a high-profile criminal case. Here are the factual basics from the Times piece:

The Supreme Court on Monday said it would not review a case arising from the 1964 kidnapping and slaying of two black teenagers along the Mississippi-Louisiana border, an episode that continues to stir legal debate as it stokes memories of the ugliest racism.

The court declined to take the case of James Ford Seale, a cancer-stricken former Ku Klux Klan member now in his mid-70s, who was convicted more than three decades after the killings of Charles E. Moore and Henry H. Dee. Mr. Seale is serving a life term for kidnapping and conspiracy, and the Supreme Court’s action on Monday means his conviction stands....

The Supreme Court had been asked by the United States Court of Appeals for the Fifth Circuit to decide whether too much time had passed between the crime and Mr. Seale’s arrest in early 2007 for him to be prosecuted on a federal kidnapping charge. Over the objections of Justices John Paul Stevens and Antonin Scalia, the court turned down the Fifth Circuit’s request.

Hard-core fed courts fans will be interested in how The BLT describes the context of the Justices' choice to turn down the Seale case now:

It's a rarely used, dusty corner of the Supreme Court's jurisdiction. And on Monday the Court decided to leave it undisturbed, rejecting a request by the U.S. Court of Appeals for the 5th Circuit to resolve a question that could affect prosecution of long-ago civil rights cases in the south.

Under federal law dating back to 1802, one way to get a case before the Supreme Court is for a federal appeals court to certify the question it raises -- in other words, asking the justices to decide the question and instruct it on what to do. It has never been a frequently-traveled path to the Supreme Court, but it has been allowed from time to time -- though not since 1981. In a 1957 case, the Court suggested the appeals courts should resolve knotty questions themselves without certifying a question, except in "rare instances."

In July, the 5th Circuit invoked the certificate method to answer a question on which it had split 9-9: what statute of limitations applies in the federal prosecution of James Ford Seale, a Ku Klux Klan member accused in the kidnap and murder of two black teenagers in Mississippi in 1964....

According to a Justice Department tally, the issue could affect 22 possible prosecutions of racially-motivated crimes from the 1950s and 1960s. A majority of the 5th Circuit certified the question to the Supreme Court, calling it "an issue of first impression and of national importance." The 5th Circuit said it was not ignoring its responsibility to decide cases, but that the judges were "simply unable to reach a decision."

The Supreme Court on Monday dismissed the 5th Circuit's plea, over the dissent of Justice John Paul Stevens, joined by Justice Antonin Scalia. The issue is "narrow, debatable, and important," Stevens said, and should have been taken. "I see no benefit and significant cost to postponing the question;s resolution." Stevens also lamented the virtual disappearance of the certification process. "The certification process serves a valuable, if limited, function. We ought to avail ourselves of it in an appropriate case."...

Mayer Brown partner Stephen Shapiro says the high court may have rejected the 5th Circuit's plea now because it is at an interlocutory stage and "a dozen other issues" are still pending. Shapiro said the Court is still in its phase of keeping its docket lean, and it may be concerned that "if you grant one now, next year there will be 20."

Steve Vladeck, professor at American University Washington College of Law, said the Court's action Monday is "hardly surprising, but disappointing." With the 5th Circuit split, the issue will go unresolved for months if not years. "If the certification procedure is still on the books, when else would you use it if not in a case like this?"

"Is Colorado’s U.S. Bench Embracing Sentencing Responsibility?"

The title of this post is what would have been a praiseworthy headline for this local article from the publication Law Week Colorado. Instead, as a click through will show, the publication went with the more provocative headline of "Is Colorado’s U.S. Bench Ignoring Sentencing Guides?". The article is a bit more balanced that the headline, and here are snippets:

Have some of Colorado’s federal trial judges turned their backs on sentencing guidelines? Colorado’s top federal prosecutor thinks so. At least one judge and the state’s federal public defender disagree.

Testifying before the U.S. Sentencing Commission at a public hearing in Denver last week, David Gaouette, U.S. attorney for Colorado, said that certain unnamed district judges have routinely disregarded sentencing guidelines in the four years since the U.S. Supreme Court’s Booker decision. Though guidelines are no longer mandatory, judges are still supposed to consult them before issuing sentences.

“The advisory nature of the sentencing guidelines, post-Booker, has resulted in greater inconsistencies in sentences among our judges,” Gaouette wrote in testimony he submitted to the commission. He said he was particularly concerned that the departures from the guidelines result in more lenient sentences. “Of the six federal judges in our district, three follow the guidelines, one sometimes does, and two do not use the guidelines. One judge has told one of my AUSAs [assistant U.S. attorneys] that the sentencing guidelines are arbitrary and would not be followed.”

Gaouette declined to identify the judges he thought ignored the guidelines, or to specify which judges he counted among the six he mentioned. Colorado has five federal judges, who have mixed criminal and civil dockets, and five senior judges, who are allowed to exclude criminal or civil cases if they choose.

Commission Chair Ricardo Hinojosa seemed surprised by Gaouette’s claims. “I have yet to hear of judges just coming out on the bench and saying it’s not going to be a guideline sentence,” Hinojosa said. Gaouette replied that he drew his conclusions either from observing judges’ sentencing habits or from remarks judges made off the record.

John Kane, senior judge on Colorado’s U.S. District Court, and Raymond Moore, federal public defender for Colorado and Wyoming, said the advisory guideline system is not creating the unwarranted sentencing disparities Gaouette alleges. Colorado is not experiencing a case of “judges gone wild,” Moore told the panel.

Kane said all of Colorado’s federal judges follow the Supreme Court’s ruling that the guidelines must be considered first when formulating sentences. Regarding Gaouette’s remarks about judges refusing to follow the guidelines, Kane told Law Week Colorado, “I don’t believe that statement is true. It’s not accurate.”

As detailed in this local article, which is headlined "California Supreme Court to review Jessica's Law," an important challenge to California's sex offender residency restrictions is to be heard this week. Here are the basics:

The state Supreme Court on Tuesday is considering whether the residency restriction contained in Proposition 83 is so broad and intrusive that it violates the constitutional rights of registered sex offenders. Under the law, critics say, many sex offenders cannot find a place to live in urban areas across the state and are effectively forced into homelessness....

"The problem with this law," said attorney Ernest Galvan, who represents S.P and three other convicted sex offenders, "is it arbitrarily banishes people from home and family without any regard to whether the past offense in any way was even related to children."

Gov. Arnold Schwarzenegger, a strong backer of Proposition 83, is defending the law, along with the state Department of Corrections and Rehabilitation, which has largely been responsible for enforcement through its parole units. The administration's lawyer declined to comment but in court papers has defended the law's constitutionality. "The residency restriction is designed to protect children, not to punish the offender," state lawyers wrote in court papers.

Jessica's Law, however, has been openly questioned for its effectiveness, even in the law enforcement community, and also for its legality. More than 20 states have adopted similar provisions, with courts taking a mixed view of whether they pass legal muster. Most courts, including two federal courts in California, have found the laws cannot be applied retroactively to sex offenders who committed their crimes and were released from prison before the laws were passed.

Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts.

At the local level, police departments find the law largely unworkable. San Jose police Sgt. Ed Pedreira, head of the city's sex offender unit, noted that Proposition 83 didn't even create a separate crime for violating the residency restriction. "The intention of the law was good," Pedreira said. "But what it leaves us with is no teeth in the law to where we can go out and actively enforce it."

A SCOTUS week for criminal justice fans who like fed courts issues

As detailed in posts here and here from SCOTUSblog, the Supreme Court is not involved in many criminal justice issues that are likely to make huge headlines this week. (The big SCOTUS headlines will be next week when the Court hears argument in the two juve LWOP cases of Graham and Sullivan.) As these likes from SCOTUSblog spotlight, however, the Court is hearing argument in three cases this week that should be of great interesting to hard-core habeas and fed courts fans:

I suspect the Pottawattamie County will garner the most attention because it deals with the issue of wrongful convictions and prosecutorial misconduct. But, as is often the reality, the case that gets the most media attention probably is not the one likely to have the most day-to-day impact on the operation of modern criminal justice systems.

A potent pitch for potent jury power after Apprendi

This new article by Jenny Carroll available via SSRN, which is titled ""Of Rebels, Rogues and Roustabouts: The Jury's Second Coming," makes a robust pitch for giving juries even more power in a post-Apprendi world. Here is the article's abstract:

This article examines the role of the jury in a post-Apprendi justice system. Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences. I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability. In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate. This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact. Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability. I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

"Why Care About Mass Incarceration?"

The title of this post is the title of this new book review available via SSRN by James Forman. Here is the abstract:

The United States incarcerates more of its citizens than any other nation in the world. Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result. Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers. His experiences — including being prosecuted for a crime himself — eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing America’s reliance on prisons, and suggests that these changes are in the nation’s collective self-interest. This Review contrasts Butler’s prudential arguments against mass incarceration with the moral arguments advanced by critics such as Glenn Loury, who emphasize the disproportionate numbers of poor people and racial minorities in our prison population. Building on Butler’s approach, the Review identifies additional aspects of our criminal justice system — including aggressive policing of minority youth and criminogenic prison conditions — whose harms extend beyond the direct victims (young people and prisoners) and imperil us all.

November 1, 2009

Noting the juve LWOP cases before SCOTUS across the pond

Thanks to How Appealing, I saw this new piece in The Times of London about the Graham and Sullivan cases to be heard by the Supreme Court nxt week. Here are snippets:

The Supreme Court’s rare decision to consider separate cases on the same issue reflects a slow and, many believe, long overdue reassessment of the uniquely American judicial policy of locking up teenagers and throwing away the key.

Joe Harris Sullivan was 13 when a Pensacola judge sentenced him to life without parole for raping a 72-year-old woman. The judge described Sullivan as “beyond help” and declared that he would “send him away for as long as I can”. He has already spent 20 years in jail.

Terrance Graham was 16 when he was arrested for armed burglary while on probation for a previous robbery.

At the time Florida was cracking down on repeat offenders and in 2005 a different judge declared Graham “incorrigible” and imposed the maximum sentence. More than 100 cases have been under the microscope since the Supreme Court ruled, after bitter internal debate in 2005, that juveniles should not be executed for murder.

Numerous legal and medical associations are supporting Sullivan and Graham on the grounds that the courts should not judge teenagers in the same way as they judge adults, just as governments recognise the difference by placing certain restrictions on juvenile drinking, voting and marrying....

The Supreme Court may decide that 13 is too young for a maximum sentence, but that 17 is not. For Sullivan and Graham, the ruling will in effect decide whether they die in jail.

"Let juries determine sex offenders’ fate"

Middlesex District Attorney Gerard Leone wants state lawmakers to give juries more say in whether some sex offenders should be civilly committed after completing their criminal sentences. It’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law.

In Massachusetts, convicted sex offenders who complete their sentences get to choose whether a judge or jury will determine if they suffer from a mental abnormality that makes them a likely risk to reoffend. Such a finding results in confinement and, equally important, treatment in Bridgewater State Hospital. Leone wants the Legislature to change the law so that either the defendant or the prosecutor can demand a jury trial, as is the case in other civil matters. Leone notes that juries in Middlesex County since 1999 have been almost twice as likely as judges to commit offenders for periods that can last from one day to life. But juries are not acting reflexively, either. In a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous.

This is a challenging area in which judges or juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future. Experts argue over whether convicted sex criminals are more likely to reoffend than other criminals. But the law already recognizes the uniquely compulsive nature of sex crimes by allowing for civil commitments in limited cases. It is only reasonable, therefore, to expect that the state should be on equal footing with the convicted sex offender when deciding how those cases should be heard initially. That’s how it works already when convicted sex offenders get to appeal their commitment after one year — either the offender or the prosecutor can demand a jury trial....

The cases are often awash in conflicting medical testimony and legal fine points. Witness that of David Flavell, a 40-year-old homeless man accused of trying to rape a woman last month in a bathroom stall at Massachusetts General Hospital. Flavell’s record is littered with sexual offenses ranging from indecent exposure and lewdness to an attempt to rape a woman outside an American Legion Post in Methuen. Twice prosecutors had tried to convince judges to commit Flavell. Twice they failed, based on conflicting medical reports and Flavell’s apparent willingness to engage in treatment. Would a jury have seen it the same way? It’s not certain. But it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens.

This is no small matter. Community acceptance of verdicts is a pillar of the legal system, as any judge would attest. And jurors have proven time and again that they are up to the task of fact-finding when deciding difficult cases.

As regular readers may know, I am a fan of greater jury involvement in the operation of various aspects of the criminal justice system. I am intrigued to learn that juries already can and do play a role in Massachusetts' sex offenders civil commitment scheme, and I am pleased to see this editorial make an effective case for this kind of community involvement in tough criminal justice decisions.

Mississippi Supreme Court looking into capital case delays

As detailed in this local article, which is headlined "Death row case delays flagged," the Mississippi Supreme Court is trying to figure out why a number of state capital cases are stuck in the post-conviction appeal pipeline. Here is how the piece begins:

The Mississippi Supreme Court has asked trial judges why they have not ruled on post-conviction claims of nine death row inmates. At least four of the cases involve claims of mental disability.

The Supreme Court issued the orders Thursday. The justices said they want to know what is taking so long on the cases and if they should force on the trial judges a timetable to render decisions. In a post-conviction petition, an inmate argues he has found new evidence — or a possible constitutional issue — that could persuade a court to order a new trial.

"The Court has undertaken a systematic review of all pending post-conviction death penalty cases and has sought information on the status of cases for which there appears to be a lack of activity," Chief Justice Bill Waller Jr. said. He said the reviews will continue. "We will systematically review the status of death penalty post-conviction cases ... to assure that the fair and efficient administration of justice is being carried out.

This story provides a useful reminder of the fact that capital case delays can often be the result of actions by foot-dragging lower courts (or even prosecutors); they are not produced soley by just death row defendants and their defense attorneys (though I suspect many defendants do not much mind such delays).

State judge calls for repeal of school-zone mandatory sentences

This local articlefrom Pennsylvania, which is headlined "Berks judge: End mandatory sentences involving drug sales in school zones," reports on a state judge complaining about the consequences of mandatory minimum sentencing terms for drug sales in school zones. Here is how the article starts:

A Berks County judge called for immediate action from legislators to repeal a law allowing prosecutors to seek mandatory sentences for drug dealers selling within 1,000 feet of a school. "We cannot continue to fill up the prisons with nonviolent people who sell marijuana," Judge Linda K.M. Ludgate said. "We are in a state budget crisis. This law no longer makes sense."

Ludgate, head of criminal court, was on a Pennsylvania Commission on Sentencing advisory committee that concluded the law must be repealed. The panel's report was presented to the House Judiciary Committee. "We cannot wait any longer for this law to be repealed," said Ludgate, also a member of the Pennsylvania Commission on Sentencing. "It's no longer practical. The legislators must decide whether they want to fill up prisons with murderers and rapists or people selling marijuana."

The numbers show Berks County prosecutors imposed mandatory sentences for 186 cases, or 63 percent, of the 294 mandatory-sentence cases in 2008. The law requires judges to impose mandatory sentences when requested by prosecutors. Prosecutors statewide obtained mandatory sentences in 314 drug-zone cases, or 18 percent of the 1,732 mandatory sentences handed down in 2008. The report concluded the 1997 drug-free school zone is clogging up prisons, not shielding children from drugs.

"There is no relationship between the school zone and selling drugs to kids," said Mark Bergstrom, executive director of the Pennsylvania Commission. "If you are selling drugs to another person at 2 in the morning, and there are no kids out, you still face a mandatory sentence," he said. "This is not the intention of the law."